En Banc, the Ninth Circuit Rules Against the Plaintiffs in Peruta

by Charles C. W. Cooke

I’ve just finished reading the Ninth Circuit’s en banc decision in Peruta v. City of San Diego.

The short version: This was a loss for gun owners. The en banc court declined to agree with the three-man panel that preceded it, and instead “affirmed the district courts’ judgments and held that there is no Second Amendment right for members of the general public to carry concealed firearms in public.” In consequence, Californians who live in counties with strict licensing regimes will not be able to carry firearms for their defense.

The long version: The majority opinion isn’t badly argued, and its foundational contention — that there has never been a Second Amendment right to carry a concealed weapon — is arguable, if not likely correct. The majority claims that, the “overwhelming consensus of historical sources” lead one to the conclusion “that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public,” and it notes that there is “nothing in the historical record suggesting that the law in the American colonies with respect to concealed weapons differed significantly from the law in England.” If one sticks purely to the question, “does the Second Amendment protect the right of the public to carry concealed weapons?” one could certainly side with the majority.

But — you knew there’d be a but! — one cannot in practice stick solely to that question, and so one cannot ultimately side with the majority. And why not? Well, because the right contained within the Second Amendment is to “keep and bear arms,” and the legal status quo in California makes that impossible. As the dissenters note, California also prohibits the open carrying of firearms, which means that it now has an overall regulatory structure under which the “bear” part of the Second Amendment has been entirely obviated. It is all well and good to cite the many historical occasions on which concealed carry has been restricted, but if one wants the complete story one has to acknowledge that these restrictions were a) introduced pre–D.C. v. Heller, b) typically restrictive rather than prohibitive in nature, and c) implemented while open carry was permitted — i.e., while there were other options available for those who wanted to “bear arms.”

In making this case, Judge Callahan cites D.C. v. Heller, which decision, she suggests:

indicates that concealed-weapons prohibitions may be proper as long as individuals retain other means to exercise their Second Amendment right to bear arms for self-defense. However, where other ways of exercising one’s Second Amendment right are foreclosed, a prohibition on carrying concealed handguns constitutes a “severe restriction” on the Second Amendment right, just like the District of Columbia’s unconstitutional handgun ban in Heller.

In other words: California can ban concealed carry or it can ban open carry, but it can’t ban both.

Interestingly enough, the majority doesn’t explicitly disagree with this proposition. Indeed, Judge Fletcher’s majority opinion deliberately leaves open the possibility that open carry may be constitutionally mandatory. But, for now at least, the court has decided to leave that question well alone, and instead to address the question before it in splendid isolation:

As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public. The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California’s restrictions on open carry; they challenge only restrictions on concealed carry.

If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment.”

In other words: California is allowed to ban concealed carry, and that’s all we care about today.

In separate dissents, Judge Silverman was joined by Judge Bea in arguing that the rules in question would not have survived intermediate or strict scrutiny; and Judge N. R Smith argued that, because California had banned open carry since the suit was first filed, the case should have been remanded to the district courts. The next stop, if any, will be at the Supreme Court.

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